12 F. 884 -

12 F1d 884

class="ad-unit">

Advertisement

Case Text

884

FEDERAL. ,REPORTER.

If he thought otherwise he should, at least, have objected. He, however, gave the subject no attention other than to send the paper to his broker. It was his duty to be present on Monday morning and receive his wool. In his .absence the respondent was justified in placing it on the wharf, as he did. He was not required to store it, or place it under cover. Had the libellant been present, in accordance with his duty, it would not be suggested that the place of deposit was improper. Could he by disregard of duty impose on respondent the labor or expense of placing it elsewhere? Certainly not. If loss ensued it was from his own fault. The respondent did not undertake to store tbe wool, or in anywise protect it after leaving the ship. On the contrary, as we have seen, the lipellant contracted to take, it when ready for discharge and relieve the respondent from suchdllty. The question, however, as before suggested, is one of notice simply, and this having been decided against the libellant, his complaint must be dismissed with costs·.

CmuSTIAN f1. VAN, .TASSEL.

(Di8tricf Oourt,8. D. N6'ID York.

June 22, 1882.)

WHARVES AND BLIPS-OBLIGATIONS OF OWNERS-WARNING OF OBSTRUCTIONS.

The owner of a slip where canal-boats are in the habit of coming' in to discharge their cargoes at theowner's elevator, is bound to keep it free from injurious obstructions at the head of the slip, or to warn vessels thereof.
2. SAME-EFFECT o F N o T I C l l l . ,

Where the libellant was notified that the water' at the' head of the l!lip ,was shoal, and in order to bring his after hatch beneath the elevator brought the bows of his boat up near to the bulk-head at about high tide, and.when . the tide fell, a few feet of her bow grounded upon some stones in the. bank, of which stones the libellant was not notified, and the bows being high 'out of tbewater the boat was strained bytbe weigbtofcargo in the center, 8sthetide fell, causing leakage and damage to the cargo, and no diligence being proved in observing when she first grounded,. or any; attempt toJmul her odf· immediately thereafter, and it nota.ppearipg:that w)}en eff(Jrt/j were madew.'hau) her off they would have been s,uccessful put for the stones, a,lgping bank and the boat's grounding thereon at the libellant's risk, after I\otios, were the primary cause of the damage, aggravated by the' stones, which 'increased the difficulty of for which tpe de(endant wasresponsible; IWd'Qoth causes concurring, and riot being,distinguishlible, the libellant should recover but half his damages. " " , · " -.'

Beebe, Wilcox

« Hobbs,

Butler, Stillman

« Iiubbard, fOJ; respondent.

,

';!

CHRISTIAN V. VAN TASSEL. BROWN,

885

D. J. This is an action to recover damages sustained by the libellant's canal.boat B. F. Wade, and her cargo of grain, on October 29, 1879, through grounding in the slip near the bulk.hean, while unloading at the respondent's elevator on pier 39, North river. The respondent owned in fee a strip 15 feet in width along the southerly side of the pier on which the elevator was situated, and 35 feet of the slip adjoining to the southward, up to and including so much of the bulk-head at the head of the slip. His business was to receive and transfer grain froth boats coming into the slip for this p'urpose; and it is not disputed that he had control of at least 35 feet adjoining the pier, nor that he was legally bound to keep so much of it free from injurious obstructions. On October 28th the libellant's boat came into the slip with some grain consigned to the respondent. That afternoon and the following morning a part was removed from the second and third hatches. It being desired to remove the grain from the fourth or aft hatch, known as the booby-hatch, it was found that there was not su:ffi.cient length up to the bulk-head to permit the boat to lie along-side the pier and admit the leg of the elevator into the booby.hatch, so that it was necessary either to wind the boat completely around stern foremost, or else to breast off the bows towards the middle of the slip. On account of the wind and obstructions from other boats, it was found impracticable to turn the boat about, and her bows were up so as to admit the therefore shoved off until she could be leg of the elevator. After the grain was discharged her bows were found to be aground, and they were unable to haul her off until the flood tide, several hours afterwards. While aground by the bows the respondent's'superinanother tendent had pulled her starn off from the pier so as to boat under the elevator. He had told the libellant that he would be obliged to interrupt the unloading of the latter's boat before commencing to unload her. The libellant's proofs ,show that the bows had grounded upon some stones which lay in the mud along the head of the slip. No holes, however, were made in the bottom by these stones, and their only effect would seem to have been to increase the difficulty of pulling her off when she was first noticed to be aground.. The strain, however, caused her seam,s to open so as to make her leak .badly, by which the rest of her cargo was damaged. The libellant claims that the respondent is liable for thisdamage':':'First, because his superintendent at the elevator assumed thedirection and control of the boat, and ordered her to the position 'where

886

FEDERAL

her bows grounded; second, for not keeping the slip clear of injurious stones; and, third, for moving her stern off where she lay aground at the bows, thereby twil'ting and injuring her. Notwithstanding the evidence on the lihellant's part, I am satisfied that the respondent's superintendent did not assume the responsibility or control of the B. F. Wade in moving her bows round in the slip where shegrol1nded. her movements, The libellant, her captain, was aboard, while it. does not appear that the superintendent was either aboard or gave any orders on the subject. He testifies that he had pre. viously told the libellant that he had better wind the ship around, because the water at the head of the slip was shoal. Two laborers employed by the respondent assisted in moving the boat. This, it seems, was a common practice, as the boats generally came too short. handed to be moved, as was necessary in the various changes in the slip, without help. This voluntary assistance from the respondent in no degree lessened the responsibility or control of the master of the boat, and the respondent cannot, therefore, be held liable on the first ground claimed. In regard to' the second ground, it is proved by several witnesses that the superintendent said that the ground at the head of the slip was a soft mud bottom.. Nothing was said about stones, and the respondent denies that there were any along his 35 feet at the head of the slip. Without going into the details of the testimony, it is sufficient to say that I think the evidence conclusively shows that the bows of the boat did ground upon stones along the port side of the boat, which impeded her removal when she was found to have grounded. On the part of the respondent, it was contended that the bows of the boat where she grounded were entirely beyond the line of 35 feet from the pier, which was the limit of the respondent's premises. The libel, sworn to less than two months after the injury, stated that the port bow of the boat was breasted off 30 feet from the pier; and it charged that the whole slip was under the respondent's control. The answer admitted that 30 feet were under his control. But upon the trial, the libellant and all of his witnesses who testified on the subject stated that the bows were shoved off only 17 or 18 feet. There are other points in the proofs, however, which show that the statement of the libel as to the distance of the bows from the pier is very nearly correct. The libellant's son testifies that as she lay fast· ened to the post on the bulk-head he stepped from the bulk-head upon her bows, and that it was a fair, easy step,-"about two feet:'

OHlUSTlUj .'V. VAN TASSEL. . . .

887

This must be considered as referring to the part of the bow nearest to the bulk-head, and not to the stem, which .was somewhat further df. The carpenter, .who was at work about the bows upon a staging made of two boards, each a foot wide, and fended oft by cleats, testifies that she lay far enough from the to allow the staging to be "admitted down nicely," and he says the stem was about four feet from the bulk-head. The bows of the boat being square, except the rounded comers, she would, at a distance of five feet from the stem toward the port side, be at least a foot and a half nearer the bulk-head than at the stem itself, which would make that part of the bows two and one-half feet from the bulk-head, and this accords very nearly with the evidence given by the libellant's son. The testimony of these two witnesses, substantially agreeing as to the distance from the. bulk-head, enables the distance from the pier to be computed with approximate certainty. For the boat was 96 feet long; the forward line of the booby-hatch, -which was 6 feet square, was 10 feet from her stern, leaving 86 feet to her stem; from the leg of the elewas 83 feet 4: inches, vator to the bulk-head along the line Qf and the leg had a lateral play of one foot and a little over each way. The distance between the booby-hatch and .the bulk-head being, therefore, 2 feet 8 inches less than the distanCE) to the stem, and the possible play of the elevator being, say 14 inches, the distance along the pier would be 1 foot 6 inches short, and 94:l,feet from the bulkhead would measure the point upon the wharf which the stern of the boat must reach, if lying along the pier, in order to admit the elevator leg into the booby-hatch. The boat was therefore swung out at the bows, while her port stem corner turned against the pier, until the elevator leg would go into the booby-hatch, and until her port bow, at its nearest point, came within 2l feet of the bulk-head, which .would make 98! feet from the stern to the bulk-head along her port side. The effect of swinging her bows out to this distance would be to carry back the forward line of the booby-hatch about one foot further distant from the bulk-head, requiring the boat to be brought forward one foot more for that reason, so that 93l feet, instead of 94!, must be taken as the base of the right angle along the side of the pier, whose hypothenuse, represented by the port side of .the boat prolonged, is 98! feet; and this, by computation, would give 31 feet as the perpendicular along the bulk-head, and be the distance from the corner of the pier to the point on the bulk-head which the port side of the boat produced would strike. At a distance of 6 feet from the bulkhead, beyond which, on account ·of the rapid 'slope of the. bottom, no

888

FEDERAL REPORTER.

stones could have affected the boat, the distance of the boat from the pier would have been 2 feet less, or 29 feet, and at 3 feet from the bulk-head she would have been 30 feet distant. As the angle of divergence of the front of the boat from the line of the bulk·head is sinae a.s the angle of the side from the line of the pier, it follows that the stem would be 1! feet further from the bulk-head than a point on her bows 5 feet to port, as above stated; while an equal distance on the starboard side of the stem would be 5t feet distant from the bulk· head. By thus locating the bows of the boat with, I think, approxi. mate certainty, it can be ascertained on whose premises the injury occurred. By Mr. Richards, a disinterested witness called by the libellant, who carefully measured the head of the slip not long after the acci. dent, it appears that, at a distance of three feet from the bulk-head, the water, at ordinary low tide, was one foot deep; and that at seven feet from the bulk-head it was three feet deep; and that from that distance the bottom descended very abruptly. It thus appears that even outside of three feet the bottom descended two feet in four. And as the starboard corner of the boat was from five to six feet from the bulk-head, it is clear that most of the impediment in hauling her off must have been upon the port side; and, locating the boat in the position I have assigned her, it will be found that the part of the boat within the limit of 7 feet from the bulk-head, and within the spondent's line of 35 feet from the pier, would be about 30 square feet, while the part to the south of the respondent's line would be about 15 square feet; and, as the latter portion was also in deeper water, there can be little doubt that the chief, if not the entire, part of the grounding was within the respondent's line. This situation is not at variance with the testimony of Capt. Christian, who says the line from the post (which was 42 or 43 feet from the pier) passed over the port bow to the cleat on the deck upon the port side; such a line would fallon the port side of the stem. Two of the witnesses also testify that they saw her bows resting upon the stones along the port side. The testimony of the carpenter that, back of the stones upon which the bow rested, he-could see daylight for four or five feet under the boat, seems to me incredible. The captain of the Bottsford says that these stones are fiat upon the top, and that for two or three feet back of them she did not touch bottom. Though they were not, therefore, such stones as would make holes in the bottoDl. they evidently were in the n.ature of obstructions, making a temporary grounding more likely to do injury, and the removal of the boat,

OHRISTIAN V. VAN TASSEL.

889

more difficult. For that reason. I think that the defendant was bound to remove them, or else give notice of them to persons about to move their boats up to· the bulk·head. The respondent's superintendent in this case did not warn the libellant of this danger. as it was his duty to do; and if it were proved clearly that the injury resulted from the stones alone, I think the respondent would be chargeable with the whole damage. But it seems to me impossible to say that the damage proceeded exclusively from the bows catching upon the stones. The stones made no holes, nor themselves caused any direct or immediate injury; their effect was simply to prevent the bows sinking a little deeper in the mud, and to make hauling her off more difficult. The explanation of the damage given at the trial was the straining of the boat from having and out of the water, while the stem was the bows empty and the middle loaded with grain, so that she was bent a.nd strained in the center at the fall of the tide; and this was principally due to the bank on which her bows were allowed to ground. But in addition to this cause, from the angling way in which the boat lay upon the bank and the rapid slope of the bottom under the starboard corner, it is evident that a further strain must have come from the starboard bows, which were heavily loaded, being in deeper water, which would tend to give the boat something of a twist j and this twist would exist whether her port bows were grounded upon rocks or mud; so, also, the weight of the cargo amidships would tend to strain the boat somewhat, though her bows were grounded upon mud only. More or less of this injury must therefore have occurred if no stones were present, unless she had been hauled off when discovered to be aground. The evidence does not show any diligence on the part of the libellant either to prevent grounding or to keep watch when she would touch, so as to be able to haul her off in time, although he had been previously notified that the water there was shoal. It appears to have been high water at Governor's island on the day in question at 7 :34 A. 11., so that it must have been slack water, if not ebb tide, at the time the boat was hauled forward, which was after grain was removed that morning from the third hatch. There is no evidence that the captain took any soundings at any time, or any precautions against the falling tide. He does not seem to have noticed that she was aground until his attention was called to it by the captain of the Bottsford after the grain was unloaded from the booby-hatch.

890

FEDERAL REPORTER.

There is nothing in the evidence to show, or to authorize me t(. assume, that if there had been no stones in the mud where she grounded, the efforts which were made to haul her off would have been effectual; and if she could not have been hauled off, more or less of the same damage must have arisen; nor is there anything in the evidence to show that the efforts to remove her were made as soon as she had got aground, or within such a period thereafter that it might be expected they would be able to remove her from theordinary mud bottom with the means at their command. The libellant, in voluntarily moving the boat forward upon what was known to be shoal water, took the risk of whatever might result from grounding upon the usual mud bottom, and from the angling manner in which she lay upon it; but he did not take the additional risk resulting from the stones, of which he was not apprised and for which the respondent must be held responsible. But, nevertheless, the primary cause. of the injury was the sloping bank, which kept the bows high out of water as the tide fell, causing the twist and strain in the center. The stones werenot the primary cause of the injury; they merelyaggravated the difficulty by making it less easy to haul the boat off when she was found to be aground. The stones, according to the proofs, did undoubtedly contribute substantially in holding her fast when she had grounded. Both causes must, therefore, be held to have conourred in producing the injury, in the absence of any proof that the stones alone prevented the removal of the boat when they first tried to haul her off. As both contributed to the injury, and as they cannot here be separated, I see no way but to divide the damage between the parties, as was done by Judge Sprague in the case of Snow v. Oarruth, 1 Spr. 824, which will, I think, result in substantial justice to both. A similar rule was applied in this court by my predecessor, Judge Choate, in the case of The William Murtaugh, 8 FED. REP. 404, and The William Cox, ld. 645, where the loss occurred through the concurrent negligence of both parties, and this was affirmed by Blatchford, C. J., in the circuit court on appeal. 9 FED. REP. 672. 8ee, also, Connolly v. R088, 11 FED. REP. 842. An order of reference may betaken to ascertain the damages.

THOMMASEN V. WHIT WILL.

891

and others.

THOMMAS:eN

and another v.

WHITWILL

(Oirtluit Oourt, E. D. Nf/ID York.

1882.)

()OLLISION-BETWEEN .l!'OREIGN VEBBELS-WHAT LAw GoVERN'll.

Where a collision at sea occurred between two vessels of different foreIgn nations, and no law of either country is proved as a fact, the case must be governed by the provisions of the statute of the United States. 2.SAME-LIMITED LIABILITY OB' OWNERS.

The liability of the owners of a colliding vessel for damages caused'1)y a lision is the value of the offending vessel after the collision and at the end of her voyage, with her pending freight.
3. BAME-OF1l'E1mING VESSEL LoST AFTER CoLLISION-MEASURE OB' LIARILITY.

Where a vessel, after colliding with another vessel at S68, was herself lost in the continuance of her voyage, and was abandoned to underwriters, the liability of her owners is limited to the a.mount realized by the sale of the wreck by the underwriters.

Henry T. Wing, O. Van Santvoord, and H. Putnam, for appellants. Foster cI; Thomson and R. D. Benedict, for respondents. In this case I find the following facts:
The bark Daphne, of Arendal, Norway, where she was built, left Baltimore, Maryland, in good condition, on the eighteenth of March, 1876, with a cargo of crude petroleum in barrels, bound to Marseilles, France, and passed out to sea on the twentieth of March. On the twenty-fifth of March, from 20 to 30 minutes after midnight, the Daphne was run into by the British steam-ship Great Western, bound from Gibraltar to New York with a cargo of merchandise. The place of collision was on the high seas,175 to 180 miles from Sandy Hook; about 150 miles from the beach near Fire Island light-house, on Long Island. The weather at and before the collision was fine. The night was dark, but. there was no difficulty in seeing lights at a great distance On the water. The wind was about E. S. E. The course of the Daphne was between N. E. and N. E. ! N. She was sailing by the wind, on her starboard tack, and had the usual regulation lights-green on her starboard side and red on her port side-properly placed and burning brightly, and was keeping a good lookout. The white mast-head light of the steam-ship was seen from the bark at about 11 o'clock P. M. at a distance off, as estimated, of about 12 miles. and about four points on the bark's starboard and weather bow, and afterwards the steam-ship's red light was seen from the bark. From the time of the first observation by the bark of the white light of the steamer the bark, with all her sails set, except the main-royal and gaff top-sail, was kept on her course N. E. to N. E. tN., sailing by the wind, making about six miles an hour, and without any change of her course by the action of her helm until the steamer was coming into her, and was within a distance off of about two of her lengths. and angling a little from aft of the bark towards the bark's bow, as on a port helm, when an order was given to the wheelsman of the bark to keep off, and the bark had fallen off a little when she was struck by the stem of the steam-